United States District Court, S.D. New York
August 3, 2005.
DARREN MILLER, Petitioner,
WARREN BARKLEY Respondent.
The opinion of the court was delivered by: DENISE COTE, District Judge
OPINION AND ORDER
On September 18, 2003, pro se petitioner Darren Miller
("Miller") filed this timely petition for habeas corpus relief
pursuant to 28 U.S.C. § 2254. Miller seeks to vacate his 2001
conviction following trial for criminal sale of a controlled
substance in the third degree and criminal sale of a controlled
substance in or near school grounds. In his petition, Miller
claims that he is being held unlawfully on the following grounds:
(1) the trial court's initial instruction to the jury concerning
accomplice liability was incomplete and misleading; (2) the trial court's rereading of its instruction concerning accomplice
liability to the jury, in response to a jury note during
deliberations, was erroneous; (3) the prosecutor made improper
comments during his closing argument to the jury; and (4) his
trial counsel rendered ineffective assistance to him, which
violated his rights under the Sixth Amendment.
On December 10, 2003, the petition was referred to Magistrate
Judge Kevin Nathaniel Fox for a report and recommendation (the
"Report"). On January 31, 2005, Judge Fox recommended that the
petition be denied.
The relevant facts are set forth in the Report and summarized
here. Miller and a co-defendant were convicted following a jury
trial in the Supreme Court of New York County. Miller was
sentenced on July 24, 2001 to five to ten years of imprisonment.
Miller, his co-defendant, and a third defendant who pleaded
guilty, were arrested in connection with an undercover purchase
of cocaine on the street. Miller was accused of being the "stash"
holder. As the undercover officer counted money to pay for the
drugs, Miller handed a sandwich bag with the cocaine vials to an
accomplice to give to the officer. Miller testified in his
defense at trial, claiming that he had been on the way to visit
the mother of his daughter when he was arrested.
At the charging conference Miller's counsel requested certain
charges; the requests were largely denied. When told that he would be giving the first summation in twenty minutes,
Miller's counsel left the courtroom. In his absence, the court
asked counsel for Miller's co-defendant if he wanted a charge on
identification; defense counsel did not respond.*fn1
In his summation, Miller's counsel argued that an undercover
officer spends his entire day "concerned with deception" and that
the officer who had testified was not worthy of belief. The
prosecutor asked the jury in his summation to weigh the
credibility of Miller against that of the police officers who
testified at trial. He added that Miller did not need to prove
anything since the burden of proof was on the prosecution, but
that the jury could consider the fact that the mother of Miller's
daughter had not testified to corroborate Miller's testimony that
he was scheduled to meet her that day.
Following summations, Miller's attorney requested that the
court charge that knowledge of a crime is insufficient to
establish guilt. The court refused, indicating that it would use
a patterned jury charge which conveyed essentially the same
information. In response to a jury note during deliberations, the court advised it would reread the charge it had already given
the jury. No attorney objected. After the charge was reread to
the jury, Miller's counsel renewed his request for the Court to
add that mere presence even with knowledge is insufficient. The
Court declined to do so.
Miller appealed the judgment of conviction to the Appellate
Division, First Department on the grounds that (1) the trial
court's initial and supplemental instructions concerning
accomplice liability were incomplete and misleading, specifically
because they (a) failed to quote N.Y. Penal L. § 20.00, (b)
improperly focused on Miller's "participation" in the offense
rather than his intentional assistance in the completion of the
offense, (c) did not charge that mere presence at the scene "even
with knowledge that the crime is taking place" does not by itself
establish criminal liability, and (d) failed to explain the
application of the law to the facts; and (2) the prosecutor's
closing argument was improper in that it (a) suggested,
improperly, that Miller was obliged to summon the mother of his
daughter, about whom he had testified, and (b) vouched for the
credibility of the prosecution's police officer witnesses. On
June 3, 2003, the First Department unanimously affirmed his
conviction, finding that (1) the instructions given by the trial
court to the jury concerning accomplice liability correctly
conveyed the applicable legal standards, (2) the trial court
fulfilled its obligation to respond meaningfully to the jury's
request for a supplementary instruction concerning accomplice liability when it repeated its original instruction to the jury
on that matter, and (3) the challenged portion of the
prosecutor's closing argument was not improper but, rather,
constituted fair comment on the evidence in response to arguments
urged upon the jury by Miller's counsel. See People v.
Miller, 759 N.Y.S.2d 658 (App.Div. 1st Dep't 2003). Thereafter,
Miller applied to the New York Court of Appeals for leave to
appeal from the determination of the First Department. That
application was denied on July 22, 2003. See People v.
Miller, 100 N.Y.2d 584 (2003).
Miller's pro se federal habeas corpus petition was received
by the district court's Pro Se Office on September 18, 2003.
The Report recommends that the petition be denied. After the
Court granted Miller's request for an extension of time for
filing objections to the Report, Miller filed objections dated
March 1, 2005. Although Miller's objections largely reiterate the
arguments set forth in his original petition without addressing
the Report's analysis or conclusions, this Opinion reflects a de
novo review of the Report. For the following reasons, the Report
is adopted, and the petition is denied.
The Court may accept, reject, or modify, in whole or in part,
the findings or recommendations set forth within the Report.
28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b). The Court must make
"a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P.
72(b); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.
1997). Where there are no objections, the Court may accept the
Report, provided there is no clear error on its face. See
Heisler v. Kralik, 981 F. Supp. 830, 840 (S.D.N.Y. 1997),
aff'd sub nom. Heisler v. Rockland County, 164 F.3d 618 (2d
Where a state court has adjudicated the merits of a claim
raised in a federal habeas corpus petition, a writ of habeas
corpus may issue only if the state court's adjudication of the
claim either resulted in a decision that is contrary to or an
unreasonable application of federal law as determined by the
Supreme Court of the United States, or resulted in a decision
that was based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding.
28 U.S.C. § 2254(d). In addition, when considering an application
for a writ of habeas corpus by a state prisoner, a federal court
must be mindful that any determination of a factual issue made by
a state court is presumed correct, and the petitioner has the
burden of rebutting the presumption of correctness by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
A. Jury Instructions
The Report concludes that the portion of the jury instructions
devoted to accomplice liability, and the rereading of the same in
response to a note from the jury while deliberating, adequately
conveyed that legal concept to the jury and did not affect the entire trial such that Miller was deprived
of due process. In his objections, Miller argues that the trial
court erred by (1) failing to include a restatement of N.Y. Penal
L. § 20.00 in the charge,*fn2 (2) wrongfully focusing the
jury on his "intentional participation" in the crime instead of
the specific conduct enumerated in N.Y. Penal L. § 20.00, (3)
failing to instruct the jury to consider evidence of guilt or
innocence separately as to each individual,*fn3 and (4)
rereading the allegedly incorrect instructions.
Habeas relief is not available to correct a charge that is in
error under state law. Estelle v. McGuire, 502 U.S. 62, 71-72
(1991). When confronted with a deficient jury instruction, a
habeas court considers only "whether the ailing instruction by
itself so infected the entire trial that the resulting conviction
violates due process." Id. at 72 (citing Cupp v. Naughten,
414 U.S. 141, 147 (1973)). It is well established that the
instruction "may not be judged in artificial isolation," but must
be considered in the context of the instructions as a whole and
the trial record. Cupp v. Naughten, 414 U.S. at 147.
The trial court relied on a model charge for a defendant who acts in concert with another to convey the elements for
accomplice liability.*fn4 In doing so, the trial court
advised the jury that a person is criminally liable for an
offense when, among other things, the person "intentionally aids
in its commission." The court explained that "intentionally
aiding [an]other person to commit a crime constitutes
participation" and a person "who intentionally participates in
the commission of a crime may be found guilty of that crime." The
court explained further that one who participates or aids in the
commission of a crime must do so "voluntarily and purposefully
and with a specific intent to do some act that the law forbids."
The trial court also advised the jury that a person's "mere
presence" would be an insufficient basis upon which to convict
the person for acting in concert in the commission of a crime.
Finally, the trial court advised the jury that "the prosecution
has the burden of establishing beyond a reasonable doubt that the
defendant was the individual who acted in concert with another
person . . . to commit the crime charged."
The trial judge's determination to rely upon language found in
New York's model charge rather than to adopt language offered by
Miller's counsel did not violate Miller's due process rights. The
charge adequately conveyed all the required elements that the
prosecution must establish in order for the jury to find Miller
guilty of accomplice liability. Failing to include an actual recitation of N.Y. Penal L. § 20.00 in the charge, when the
applicable law was correctly presented to the jury, is not a
violation that federal habeas relief can redress.
Next, Miller argues that the charge wrongfully focused the jury
on his "intentional participation" in the crime, instead of
focusing on the specific conduct enumerated in N.Y. Penal L. §
20.00. It appears that Miller is arguing that N.Y. Penal L. §
20.00 does not include "participation" as conduct that
constitutes accomplice liability and the court therefore
mistakenly focused the jury on conduct that is not included in
the statute. The core of Miller's argument is that the jury may
have found that a warning which he testified that he gave to his
co-defendant not to sell the cocaine to the undercover officer
constituted "participation" in the offense and that the jury
therefore convicted him without determining whether he actually
intended the sale to occur.
It is true that N.Y. Penal L. § 20.00 does not contain the word
"participation" or any derivative thereof; however, it does
include "intentionally aids" as conduct which creates accomplice
liability. While the charge did contain the word "participation,"
stating, for example, "every person who intentionally
participates in the commission of a crime may be found guilty of
that crime," it defined participation by referring to language
from the accomplice liability statute, stating "intentionally
aiding another person to commit a crime constitutes
participation." Miller has failed to show that this definition or the use of the word "participation" in the charge
violated his due process rights, or any other constitutional or
federal right, and is therefore not entitled to habeas relief on
this ground. Finally, since the jury instructions were proper,
the rereading of the charge, in response to a jury note during
deliberations, was also proper.
B. Prosecutor's Closing Argument
The Report concludes that the prosecution's closing argument
was a proper and fair response to Miller's summation, and that
the First Department's opinion was neither contrary to nor an
unreasonable application of federal law. See
28 U.S.C. § 2254(d). Miller's objections essentially reiterate the same
arguments set forth in his original petition without addressing
the Report's analysis or conclusions.
The Supreme Court has held that when defense counsel makes
statements to a jury that invite reply by the prosecution, such a
reply, when given, is not improper if, when considered within the
context of the entire trial, the reply cannot be said to have
deprived the defendant of a fair trial. See United States v.
Young, 470 U.S. 1, 11-12 (1985); Lawn v. United States,
355 U.S. 339, 359 (1958). With his attack on the credibility of the
undercover officer, defense counsel opened the door to the
prosecution's arguments that the jury should compare the
credibility of the witnesses and consider Miller's failure to
call the mother of his daughter as a witness. Miller has not
shown that the determination reached by the First Department in this regard was either contrary to or an unreasonable application
of federal law.
C. Ineffective Assistance of Counsel
Miller's petition urged that he was denied effective assistance
of counsel when his attorney left the courtroom before the
conclusion of the charging conference.*fn5 The Report
concludes that, although Miller failed to raise this claim on
appeal, it should be deemed exhausted. The Report continues its
analysis finding both cause and prejudice attributable to the
procedural default of this claim. It determines, however, that
the Sixth Amendment violation was harmless error.
A violation of the Sixth Amendment right to counsel is subject
to a harmless error analysis. Satterwhite v. Texas,
486 U.S. 249, 257 (1988). Miller's attorney missed a very brief portion of
the charging conference, during which the court asked counsel for
Miller's co-defendant one question. Miller's attorney had already
presented his requests to the Court, and he added more requests
following summations. Miller has not shown that his attorney's
brief absence from the courtroom had any adverse impact on his
defense. Assuming there was a violation of Miller's right to be
represented by counsel at a critical stage of the proceedings
against him, the Report is correct that any violation was
The Report is adopted, and the petition for a writ of habeas
corpus is denied. In addition, no certificate of appealability
shall be issued. The petitioner has not made a substantial
showing of a denial of a federal right, and appellate review is
therefore not warranted. Tankleff v. Senkowski, 135 F.3d 235,
241 (2d Cir. 1998). I also find pursuant to
28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in
good faith. Coppedge v. United States, 369 U.S. 438, 445
(1962). The Clerk of Court shall dismiss this petition.